Baldor Electric Co. v. Reasoner , 2001 Mo. App. LEXIS 2196 ( 2001 )

RICHARD B. TEITELMAN, Judge.

Baldor Electric Company (“Employer”) appeals from a decision of the Labor and Industrial Relations Commission (the “Commission”) finding that Raylene Reasoner (“Claimant”) was not disqualified from receiving unemployment compensation benefits following her discharge for violating Employer’s Substance Abuse Policy (the “Policy”).

Employer raises two points on appeal. First, Employer argues that the Commission erred in finding that Employer’s laboratory report reflecting the results of Claimant’s drug test was inadmissible hearsay and did not constitute competent evidence. Second, Employer argues that the Commission erred in finding that Claimant was eligible for unemployment compensation because her violation of the Policy constituted misconduct connected with work, thus disqualifying her from receiving benefits pursuant to Section 288.050.2 RSMo (2000).¹ We affirm the Commission’s Order.

Factual and Procedural Background

On November 1, 1999, Employer enacted a revised version of the Policy which provided, inter alia, that an employee must undergo drug testing where employer has “reasonable suspicion” to believe an employee is impaired on the job by drugs or alcohol. According to the Policy, reasonable suspicion “shall” exist when an employee suffers a work-related injury resulting in medical treatment. The Policy further provides that a positive test result shall be grounds for discipline, up to and including termination, even for the first offense.

On August 18, 2000, Claimant arrived for work and took her position on the assembly line. While performing her duties, a spool of plastic mesh fell and cut Claimant’s finger. The spool was dirty and Claimant was required to get a tetanus shot. Employer considered this incident to be a work-related injury resulting in medical treatment and, pursuant to the Policy, required Claimant to undergo a urine test designed to detect the presence of drugs and alcohol. Claimant’s urine test indicated a level of 25 nanograms of marijuana metabolites per milliliter (ng/ml). Under the Policy, any level of marijuana metabolites exceeding 15 ng/ml is deemed a positive result. According to Employer, the 15 ng/ml level reflects “user cut off levels and not passive levels.” On August 21, 2000, after 17 years of service to Employer with no prior reprimands for drug or alcohol use, Claimant was discharged from her employment solely on the basis of the positive drug test.

Claimant then filed a claim for unemployment benefits with the Division of Employment Security. Employer protested the claim, arguing that Claimant was disqualified from receiving unemployment benefits due to her positive drug test. A deputy agreed and Claimant was denied benefits.

Claimant appealed the deputy’s decision to the Appeals Tribunal. An Appeals Referee (“Referee”) held a hearing and heard testimony from Employer’s production manager as well as Claimant. At the hearing, Employer’s production manager testified as to the foundation for admitting Claimant’s drug test results into evidence'. He also introduced a copy of Employer’s Policy. The Referee admitted both items into evidence without objection from Claimant. Employer offered no other evidence that Claimant used drugs or was intoxicated while at work and relied solely upon the drug test to support its position.

In response to Employer’s evidence, Claimant testified that she was exposed to second-hand marijuana smoke on the weekends during social gatherings with friends and acquaintances. She consistently denied having smoked marijuana and stated that her only exposure was through second-hand smoke. Claimant also testified that after her discharge by Employer, she passed a drug test as part of -the interview process with a prospective Employer.

After hearing the evidence, the Referee overturned the deputy’s decision. The Referee found that there was no evidence that Claimant’s discharge was for misconduct connected with work as is required to disqualify Claimant from receiving benefits under Section 288.050.2. He specifically found that Claimant did not smoke marijuana and that Claimant presented credible firsthand evidence that her only exposure to maryuana was through secondhand smoke. The Referee further found that Employer provided no evidence to interpret the “meaning of the [test] results.” Although the test results were admitted into evidence, the Referee ultimately determined that they were hearsay and did not constitute competent evidence. The Commission adopted and affirmed the Referee’s decision. This appeal followed.

Discussion

Our standard of review is governed by Section 288.210, which states that “[T]he findings of the Commission as to the facts, if supported by competent and substantial evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the appellate court shall be confined to questions of law.” The decision of the Commission will be disturbed only if it is unsupported by competent and substantial evidence or is unauthorized by law. Division of Employment Security v. Gardner-Denver Machinery, Inc., 941 S.W.2d 13, 14 (Mo.App. W.D.1997). We view the evidence in the light most favorable to the findings of the Commission. Tutwiler v. Fin-Glair Corp., 995 S.W.2d 497, 499 (Mo.App. E.D.1999).

Point I

In its first point on appeal, Employer contends that the Commission erred in adopting the Referee’s finding that the test results were inadmissible hearsay and did not constitute competent evidence. This point misapprehends the finding adopted by the Commission. The Referee admitted the test results into evidence without objection from Claimant and after Employer’s production manager established the requisite foundation. After reviewing the test results, the Referee determined that the “Employer witness had no technical knowledge of the test, the equipment, or the meaning of the results.” Therefore, read in context, the Referee’s statement that the test results were “hearsay and do not constitute competent evidence” reflects the Referee’s assessment of the evidentiary value of the test results, not their admissibility. Neither the Referee nor the Commission found that the test results were inadmissible. Instead, the Commission simply adopted the Referee’s finding that Employer provided no evidence to interpret the meaning of the test results. Once admitted, the weight to be given evidence rests with the Commission. Reeves v. Midwestern Mortg. Co., 929 S.W.2d 293, 295 (Mo.App. E.D.1996). We may not substitute our judgment for that of the Commission on a matter of the credibility of evidence. Schneider v. Ashburn/Schneider Painting 849 S.W.2d 271, 274 (Mo.App. E.D.1993). Point denied.

Point II

Employer next contends that because the evidence showed that Claimant tested positive for marijuana in violation of the Policy, it is indisputable that she committed misconduct connected with work disqualifying her from receiving unemployment compensation. Under the facts of this case as determined by the Commission, the issue thus presented is whether the violation of Employer’s substance abuse Policy through off-duty exposure to second-hand marijuana smoke necessarily constitutes misconduct connected with work. In resolving this issue, we note that Employer, not Claimant, bears the burden of proving by substantial and competent evidence that Claimant was discharged for misconduct connected with work. Tutwiler v. Fin-Clair Corp., 995 S.W.2d 497, 499 (Mo.App. E.D.1999). We hold that Employer has not met its burden and Claimant is therefore not disqualified from receiving unemployment compensation benefits.

As a provision that disqualifies a discharged employee from receiving unemployment compensation, the misconduct connected with work clause in Section 288.050.2 must be strictly construed against the disallowance of benefits. Miller v. Kansas City Station Corp., 996 S.W.2d 120, 122 (Mo.App. W.D.1999). The plain language of the statute provides that misconduct will disqualify a claimant from receiving unemployment compensation only if the misconduct is “connected with the claimant’s work.” In interpreting this language, Missouri courts recognize that while an employee’s violation of a work rule may warrant discharge of that employee, it does not necessarily constitute misconduct connected with work justifying the denial of unemployment compensation benefits. Bartsch v. Moore, 931 S.W.2d 877, 880 (Mo.App. W.D.1996). Therefore, violation of a work rule is not dispositive proof of misconduct connected with work. Instead, a reasonable work rule serves as a relevant factor in determining if the behavior at issue is in fact misconduct and if such misconduct is connected with work.

Employer seeks to overcome the foregoing analysis by arguing that Missouri courts “routinely” find that the violation of a reasonable work rule constitutes misconduct connected with work. However, the cases cited by Employer do not support the argument that Claimant’s violation of the Policy alone is sufficient to support a finding of misconduct connected with work. For instance, in Hurlbut v. Labor & Indus. Relations Comm’n, 761 S.W.2d 282 (Mo.App. S.D.1988), an employee was denied unemployment benefits for violating the employer’s rule regarding the verification of funds prior to completing a job shift. Rather than purporting to regulate off-duty conduct, this work rule established one of the employee’s direct, on-the-job responsibilities. The work rule violation in Hurlbut was thus connected with the employee’s work.

Similarly, in Koret of California, Inc. v. Zimmerman, 941 S.W.2d 886 (Mo.App. S.D.1997), an employee disregarded accounting rules and failed to secure the manager’s office per company policy. The employee was discharged and then disqualified from receiving unemployment compensation. As in Hurlbut, the work rules at issue served to further define the employee’s on-the-job responsibilities. Therefore, neither case established a general rule that all violations of reasonable work rules are also instances of misconduct connected with work. Instead, each of these cases involved the violation of a work rule that served in part to define the employee’s on-the-job responsibilities and was therefore indisputably connected with work. Accordingly, these cases do not support Employer’s argument that Claimant’s violation of the Policy as a result of off-duty conduct necessarily disqualifies her from receiving unemployment compensation.

Strictly construing Section 288.050.2 against the disallowance of benefits, we conclude that in this case, the relevant inquiry is whether Claimant’s off-duty conduct affected her ability to fulfill her on-the-job responsibilities to Employer. Accordingly, to meet its burden of proving misconduct connected with work, Employer had to produce evidence that, in addition to violation of the Policy, Claimant’s off-duty exposure to marijuana had some demonstrable impact on her ability to fulfill her on-the-job responsibilities. Employer cannot supplant the statutory requirement of proving misconduct connected with work and reduce its statutory unemployment insurance responsibilities through the promulgation of its own work rules, especially when such rules purport to regulate the off-duty conduct of its employees.

Other states have dealt with this issue and have also required evidence of impairment of work performance or evidence that the tested levels of drugs would affect the employee’s on-the-job performance. See Weller v. Arizona Dept. of Economic Security, 176 Ariz. 220, 860 P.2d 487, 493 (1993); Virginia Employment Comm’n v. Sutphin, 8 Va.App. 325, 380 S.E.2d 667 (1989); National Gypsum Co. v. State Employment Security Bd. Of Rev., 244 Kan. 678, 772 P.2d 786, 792 (1989); Glide Lumber Products Co. v. Employment Division, 86 Or.App. 669, 741 P.2d 907, 910-911 (1987). Each case held that off-duty drug use in violation of an employer’s substance abuse policy constitutes work-related misconduct warranting the denial of unemployment compensation only if the employee’s work performance was in some way adversely affected. We agree with these holdings.²

Under the foregoing principles, we find that Employer has in this case failed to meet its burden of proving misconduct connected with work. There was no substantial evidence that Claimant ever used marijuana while at work or was in any way impaired by marijuana while at work. The only evidence of misconduct connected with Claimant’s work was her test result indicating a level of 25ng/nl of marijuana metabolites in her urine. Employer offered no expert testimony or any other explanation demonstrating that the 25ng/ml level in any way impaired Claimant’s ability to meet her on-the-job responsibilities to Employer.³ Instead, the only testimony regarding the meaning of the test results was Employer’s production manager’s statement that the 15 ng/ml is a cutoff that “I believe is their technical measurement and anything above 15 deems it greater than passive.” Employer therefore introduced no evidence to establish that its 15ng/ml cutoff amounted to anything more than Employer’s arbitrarily established figure or that Claimant’s test results evidenced any on-the-job impairment.

The Commission reviewed the evidence produced by Employer and found that Employer failed to sustain its burden of proving misconduct connected with work. The Commission’s interpretation of whether behavior constitutes misconduct is entitled to great weight. Bartsch v. Moore, 931 S.W.2d 877, 880 (Mo.App. W.D. 1996). Because Employer has produced no evidence that Claimant’s test results indicate that she had used drugs or was in any way impaired by drugs while at work, we find no basis for reversing the Commission’s finding that there was no evidence of misconduct connected with Claimant’s work.

We conclude by emphasizing what this opinion does not do. This opinion does not condone or encourage the use of illegal drugs in the workplace or elsewhere. It does not trivialize the social and economic consequences of drug abuse. It neither prohibits employers from discharging employees who use illegal drugs nor requires that unemployment compensation be afforded to those whose drug use impairs their work performance or endangers fellow workers. To the contrary, our holding does nothing more than protect an employee’s right to receive unemployment compensation when the reason for the employee’s discharge is not demonstrably work-related pursuant to Section 288.050.2.

The Order of the Commission is affirmed.

GARY M. GAERTNER, SR., J. concurs. CLIFFORD H. AHRENS, J. dissents in separate opinion.

1 . All subsequent statutory citations are to RSMo (2000) unless otherwise specified.

2 . The dissent correctly notes that the states are split on this issue. Some states have held that a positive drug test in violation of an employer's substance abuse policy alone constitutes misconduct connected with work, thus disqualifying the employee from receiving unemployment compensation benefits. We are not persuaded by the rationale of these holdings.

3 . This case is thus distinguished from George’s Processing, Inc. v. Henry Ottendorf and Division of Employment Security, SD #24162, an opinion handed down by the Southern District on October 30, 2001. In that case, the claimant sustained a work-related injury, and pursuant to the Employer's substance abuse Policy, was required to under go a drug test. Claimant tested positive for marijuana. As in the instant case, the Employer's Policy deemed any result above 15 ng/ml to be a positive result. Claimant tested positive with a level of 342 ng/ml. The Commission found no objective evidence of impairment at the time of the test and therefore affirmed the deputy's finding that the claimant was fired for a positive drug test, not because of misconduct connected with work. The Southern District reversed, holding that there was ample evidence that the claimant was in fact impaired by marijuana while at work. The court noted that a chemist testifying on behalf of Employer stated that the 342 ng/ml level reflected on claimant's drug test indicated possible impairment. Furthermore, the claimant testified that he believed he would not pass the test because he had smoked marijuana earlier that morning or the day before.